Too Young for Sex, But Old Enough for the Sex Offender Registry, Part II

By Michele Goodwin

This post is the second in a three part series on the use of criminal law to police teen sex.  The first part can be viewed here.

In recent years, thousands of judicial proceedings against children result in teens as young as thirteen being adjudicated as sexual predators and placed on sex offender registries.  The problem in the United States is that statutory rape laws create per se rule violations with respect to all sexual intercourse involving children.  My research reveals that children as young as 11 have been prosecuted as both the victim and sex offender.  In some states, even sexual touching involving consenting minors breaks the law. In other words, sex with a person under the age of majority or age of consent (depending on the specific state legislation) is always crime.  In a recently published Wisconsin Law Review article found here, I argue that such prosecutions can and often do lead to absurd results.

In Utah, which serves as a relative example, a child who commits “more than five ‘separate acts’ of sexual touching,” even without sexual penetration, could be convicted for “aggravated sexual abuse of a child.” In South Dakota, a minor can be adjudicated a delinquent and guilty of first-degree rape for one act of sexual penetration, regardless of consent if the consenting party is under thirteen.. Wisconsin’s statutory rape law reads similarly. These matters are particularly thorny in their application against children because legally a child cannot consent to sexual intercourse. In some states, including Utah, adolescent fondling constitutes sexual abuse of a child just as attempts to touch the buttocks, breasts, or “intent to arouse or gratify the sexual desire.” Even consenting children will always be deemed “victims” in states that take this approach.

According to the CDC, nearly 50% of high school teenagers have had sexual intercourse.  In fact, by the 9^th grade over 30% of girls and nearly 40% of boys have had sex.  In conservative states like Mississippi and South Carolina, pre-teen boys report the highest rates of pre-teen sex (19.1% and 17.1%, respectively).   Along with reporting sexual activity, white teens report the highest rates of combining sex with alcohol.

CDC studies expose the gaps in how parents view and understand youth sexuality. An American Broadcasting Company (ABC) News survey investigating parental and teens attitudes on sex places has some startling findings.  Consider this: while nearly ninety percent of parents surveyed confirmed that they spoke with their teens about sex, only forty nine percent of teens believed such conversations took place.

However, adolescent sexual activity raises questions for the law.  Should teens be prosecuted for committing the crime of rape if they engage in consensual sexual intercourse with children of their own or near age?  Is it ethical to prosecute children similarly to adults for having sex with other children?  More to come in Part III.